2008 (10) TMI 186 - AT - Customs

Claim of refund of CVD paid - The duty worked out as per check-list was for a sum of Rs.18,765/- including cess amount of Rs. 367.94. Bill of Entry has been assessed allowing exemption under Customs Notification No. 21 /2002, as claimed by the appellant, but the benefit of the Central Excise Notification No. 6/2002 for CVD has been denied and the duty has been worked out to Rs. 83,077/-. The appellant has paid the duty and cleared the consignment and preferred a refund claim later which was rejected by the original authority on the ground that the assessment has not been challenged. Held that once an order of assessment is passed the duty would be payable as per that order. Unless that order of assessment has been reviewed under Section 28 and/or modified in an appeal that order stands. So long as the order of assessment stands the duty would be payable as per that order of assessment. A refund claim is not an appeal proceeding. Appeal rejected

Summary

Issues: Appeal against rejection of refund claim for customs duty and CVD exemption.

Analysis:
1. Factual Background: The appellant imported medical equipment claiming concessional customs duty and CVD exemption under specific notifications. The duty was assessed higher than claimed, leading to a refund claim rejection.

2. Appellant's Argument: The appellant argued that a clerical error in processing led to denial of CVD exemption, justifying refund without challenging the assessment order based on relevant case laws.

3. Revenue's Argument: The Revenue contended that the denial was a conscious decision, requiring appeal against assessment, citing precedents where refund without appeal was disallowed.

4. Tribunal's Decision: The Tribunal analyzed the assessment order, finding no clerical mistake but a conscious decision on CVD exemption denial. It held that the refund officer lacked authority to alter an equal-rank officer's assessment decision.

5. Precedent Analysis: The Tribunal distinguished the present case from precedents where formal re-assessment applications were made, emphasizing the need to challenge assessments for refund claims.

6. Legal Principles: Referring to Supreme Court rulings, the Tribunal highlighted that unless an assessment is challenged through appeal, refund of excess payment cannot be claimed. It emphasized that a refund claim does not equate to an appeal process to review an assessment order.

7. Application of Case Laws: The Tribunal differentiated the present case from a case where correct descriptions and claims were made, emphasizing that denial of exemption claims cannot be reviewed during refund sanctioning.

8. Final Decision: The Tribunal rejected the appeal, upholding the denial of refund due to failure to challenge the assessment order, in line with established legal principles and precedents.

This detailed analysis showcases the Tribunal's thorough consideration of the facts, arguments, legal principles, and precedents involved in the appeal against the rejection of the refund claim for customs duty and CVD exemption. The decision underscores the importance of challenging assessments through appeals for claiming refunds and highlights the limitations of refund officers in altering assessment decisions.